Mf and Ef v Jdf

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 12 July 2005
• Neutral Citation: [2005] IESC 45
• Date: 12 July 2005
• Court: Supreme Court
• Docket Number: [S.C. Nos. 399 of 2002 & 246 of 2003]

[2005] IESC 45

THE SUPREME COURT

McGuinness J.

McCracken J.

Kearns J.

2003/246

F (C) v F (JD)

IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989

IN THE MATTER OF THE FAMILY LAW ACT 1995

IN THE MATTER OF THE DOMESTIC VIOLENCE ACT 1996

IN THE MATTER OF THE GUARDIANSHIP OF INFANTS ACT 1964

AND IN THE MATTER OF M.F. AND E.F. (INFANTS)

BETWEEN:

C.F.

APPLICANT

and

J.D.F.

RESPONDENT

FAMILY LAW ACT 1995 S16

FAMILY LAW ACT S16(2)(A)

J D v D D 1997 3 IR 64

WHITE v WHITE 2000 3 WLR 1571

SMYTH v HALPIN 2 ILRM 38

CULLEN v CULLEN 1962 IR 268

GILLET v HOLT 2000 2 AER 289

BASHAM, IN RE 1987 1 AER 405

INWARDS v BAKER 1965 1 AER 446

SALVATION ARMY TRUSTEE COMPANY LTD v WEST YORKSHIRE METROPOLITAN CO COUNCIL 1981 41 P & CR 179

FAMILY HOME PROTECTION ACT 1976 S3

FAMILY LAW ACT 1995 S54(1)(A)

NATIONAL IRISH BANK v GRAHAM 1995 2 IR 244

MCC v MCC 1986 ILRM 1 1984 5 1409

N A D v T D 1985 ILRM 153

SMYTH v HALPIN 1997 2 ILRM 38

GILLETT v HOLT 2000 2 AER 289

EQUITY

promissory estoppel

Proprietary estoppel - Land law - Beneficial interest --Estoppel by representation - Requirement of representations in words or deeds - Whether acquiescence or silence sufficient - Whether representation by conduct sufficient - Quality of assurance required - Smyth v Halpin [1997] 2 ILRM 38; Cullen v Cullen [1962] 1 IR 268; Inwards v Baker [1965] 2 QB 29 and Gillett v Holt [2001] Ch 210 considered - Respondent's appeal allowed

FAMILY LAW

family home

Definition of family home - Matrimonial assets - Beneficial interest in family property - Proprietary estoppel - Contempt of court - Custody arrangements - Whether changing school attended by children without notice, was contempt of court order regarding custody - Family Home Protection Act 1976 (No 27), s 2 - Family Law Act 1995 (No 26), ss 16 and 54 - Respondent's appeal allowed

PRACTICE AND PROCEDURE

Dismissal of proceedings

Delay - Inordinate and inexcusable delay by plaintiff - Balance of justice - Concepts of fairness and prejudice - Whether Supreme Court can interfere with discretion of High Court - Whether plaintiff could be blamed for delay - Primor plc v Stokes Kennedy Crowley [1996] 2 IR 459; Anglo Irish Beef Processors Ltd v Montgomery [2002] 3 IR 510 and O'Domhnaill v Merrick [1984] IR 151 followed; Rainsford v Limerick Corporation [1995] 2 ILRM 561 distinguished - Defendants' appeal allowed

Facts: There were two appeals before the Court arising out of a decree of judicial separation with ancillary orders. The respondent alleged that the High Court had erred in taking into account the value of property adjoining the family home as an asset available to the respondent. The applicant's appeal related to order of the High Court by which it found the applicant guilty of contempt of court for failing to comply with the judgment.

Held by the Supreme Court (McGuinness, McCracken and Kearns JJ) in allowing the respondent's appeal that it was not open to the High Court to include the property as an integral part of the family home and subsequently to divide that value between the spouses. The Court dismissed the applicant's appeal on the grounds that the applicant was in contempt. The High Court was correct to balance the contempt of the applicant against the respondent's lack of co-operation with the court.

Per curiam The Oireachtas had given a wide-ranging and virtually unlimited jurisdiction to the Circuit Court to avoid the very high costs in the High Court. It should only be necessary to invoke the jurisdiction of the High Court where many millions were at stake.

Reporter: R.W.

1 Judgment of Mrs Justice McGuinness delivered the 12th day of July 2005

2 In these family law proceedings there are two appeals before the court, the first being an appeal by the respondent J.D.F. against the judgment and order of the High Court (O'Sullivan J.) made and delivered on the 16th day of May 2002 and the second an appeal by the applicant C.F. against a subsequent order made by the same judge in the High Court on the 14th day of November 2002. Since both appeals arise from the same original family law proceedings in which the applicant sought a decree of judicial separation together with wide ranging ancillary orders the appeals were heard together. As is frequently the case in such proceedings both parties accept that their marriage has irretrievably broken down and there is no appeal against the actual decree of judicial separation. The appeals arise from ancillary matters, details of which will become clear later in this judgment.

THE FACTUAL BACKGROUND

3 The factual background as found by the learned trial judge is set out in his original draft judgment and his revised written judgment of the 16th May 2002. In summary the facts are as follows. The applicant C.F. ( "the wife") was born on the 1st December 1957. The respondent J.D.F. ( "the husband") was born on the 30th January 1953. The parties were married in a civil ceremony on the 15th November 1989, having previously participated in a religious ceremony of marriage on the 19th October 1988. There are two children of the marriage, both daughters, M. born 13th November 1992, now twelve years of age, and E. born 28th January 1995, now ten years of age.

4 The wife had been previously married on the 8th August 1980. This marriage was short lived and a church annulment was granted after approximately eighteen months. The parties obtained a decree absolute of divorce in England on the 27th March 1989; this was accepted as being valid in this jurisdiction.

5 The husband and wife were involved in a relationship from in or about 1985. The husband worked as a trader in the Bank of Nova Scotia in Dublin. The wife operated a business as a beautician. This business operated mainly in a provincial city but had two branches in Dublin.

6 At the beginning of the relationship the wife owned a house in the provincial city where she had her business. She sold this house in 1985 and divided the proceeds between investment in her business and a contribution towards the acquisition of the family home in the Donnybrook area of Dublin. The husband also contributed to the acquisition and the refurbishment of this property, in part by means of a bank loan. The husband came from a farming background in the County Wicklow area. The wife had an interest in horses, as had the husband. In 1989 the husband bought a farmhouse from his aunt. This farmhouse was situated in close proximity to a considerable farm owned by the husband's father. The farmhouse was situated on half an acre, but had no other land attached to it. It is held in the husband's sole name.

7 In 1992 the husband and wife moved to reside in this property in Wicklow, where their two children were born. The wife's businesses went through a somewhat troubled period and were sold - it appears at some small loss, or at least with no profit - between 1992 and 1994. The family home in Donnybrook was sold in 1996 for the sum of £160,000.

8 In 1998 the husband's employment at the bank was terminated and he received a settlement from his employers. In or about this time he embarked on the establishment of a stud farm business at the family home in Wicklow. He invested money in developing stables and other facilities for this business. Considerable financial evidence was given during the lengthy trial in the High Court regarding this business, and indeed regarding all other aspects of the parties" financial history, but for the purposes of deciding the issues on this appeal there is no need to consider the details of this evidence. The learned trial judge accepted on the evidence that by 2002 the stud farm business was making a profit.

9 Since there was no land attached to the parties" family home in Wicklow, the husband operated the stud farm on 22 acres of land adjacent to the family home which was part of the farm owned by his father, Mr J.F. senior. Although the husband used this land for the purposes of his stud farm, the land remained in the ownership of his father. The husband from time to time assisted his father on his farm, and it appears that the father, though now elderly, also at times assisted his son. The learned trial judge held that they had a close relationship.

10 After the wife sold her businesses she was no longer employed outside the home. With the aid of a housekeeper she cared for the home and children. She frequently rode out horses for a neighbouring farmer, had an active social life and was involved in charities. The learned trial judge held that her contribution to the stud farm business was minimal.

11 There were difficulties in the marriage from in or about 1995. These worsened in 1997–8. In April 2000 the wife issued the present proceedings. She left the family home in October 2000. Since then she has lived in rented accommodation in County Kildare. The children lived in the main with the wife, but continued to attend the local school which is near the family home. The wife has a relationship, which the learned trial judge held was not sexual, with another man.

THE PROCEEDINGS

12 Since the Special Summons initiating the proceedings does not appear to be included among the pleadings provided to this court it is not entirely clear what precise reliefs were originally sought by the applicant wife. However, these can in the main be inferred from the judgment and order of the learned trial judge. It is clear that throughout the proceedings the wife maintained that the 22 acres on which the stud farm operated formed part of the family home or at least part of the matrimonial assets.

13 On the 20th March 2001 the wife's solicitors wrote to the solicitor for the husband's father, Mr J.F., stating that it was...